RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1637-17T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LORRAINE S. MORGAN,
Defendant-Respondent. _________________________________
Submitted July 9, 2018 – Decided July 19, 2018
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 17- 06-0907.
Joseph D. Coronato, Ocean County Prosecutor, attorney for appellant (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Senior Assistant Prosecutor, on the briefs).
Roberts & Teeter, attorneys for respondent (Michael B. Roberts, on the brief).
PER CURIAM The State appeals from the December 4, 2017 Law Division
order admitting defendant Lorraine S. Morgan1 into the Pre-Trial
Intervention (PTI) program over the prosecutor's objection. The
State argues that the trial court substituted its judgment for
that of the prosecutor, and that the prosecutor's decision to
reject defendant's PTI application was based upon a thorough
consideration of all appropriate factors and did not constitute a
gross and patent abuse of discretion. Having considered
defendant's contentions in light of the record and the applicable
law, we reverse.
By way of background, this matter returns to us following a
remand ordered in our previous opinion. State v. Morgan, Docket
No. A-3766-15 (App. Div. Mar. 13, 2017) (slip op. at 9-10). In
that case, the State appealed from a March 17, 2016 order admitting
defendant to PTI over its objection in connection with a prior
indictment alleging the same offense against defendant as that
involved in the present appeal. Id. at 1.
While that appeal was pending, the trial court dismissed the
indictment against two of her codefendants, Walter C. Uszenski and
Jacqueline Halsey, and all but two of the charges against Morgan.
1 Defendant Lorraine S. Morgan and her husband, codefendant Andrew J. Morgan, share the same surname. To avoid confusion, we refer to Lorraine S. Morgan as "defendant" and to Andrew Morgan as "Morgan."
2 A-1637-17T2 Id. at 7-8. In view of this development, we remanded the matter
so that defendant could file her own motion to dismiss the
indictment against her. Id. at 9. In so ruling, we vacated the
trial court's order permitting defendant to enter the PTI program,
without prejudice to her right to file another application if her
motion to dismiss the indictment was unsuccessful. Ibid. We did
not retain jurisdiction. Id. at 10.
On remand, the trial court dismissed the indictment against
defendant. On June 20, 2017, however, a grand jury returned a
new, twelve-count indictment against defendant and her three co-
defendants.
Turning to the present appeal, we begin by summarizing the
factual basis the State presented in support of the June 20, 2017
indictment. In 2013, codefendant Uszenski was serving as the
superintendent of the Brick Township Public School District
(district). His daughter, codefendant Halsey, had a child
(Uszenski's grandchild), who was not yet five years old.
Therefore, the child was not eligible to attend kindergarten.
The State alleges that sometime in early 2013, Uszenski
decided that his grandchild should receive free full-time, pre-
school day care and free transportation to these services, together
with related services, at the district's expense. In order to
accomplish this goal, Uszenski, with Halsey's concurrence, sought
3 A-1637-17T2 to have his grandchild classified as a child with a disability,
which would make him eligible for these services at no cost to
Halsey. The State asserts that the grandchild was not disabled,
and was not entitled to these services at taxpayer expense because
he was still of pre-school age.
In order to receive special education services, the
grandchild needed an Individualized Education Program (IEP) that
was approved by the district's Director of Special Services
(Director). The State alleges that in June 2013, Uszenski decided
to remove the current Director from her position and install Morgan
in this post. Morgan, who was married to defendant, had previously
taught in a special education program in New York. However, in
1989, Morgan was arrested for, and later convicted of, felony drug
charges in that state. Uszenski and Morgan did not disclose those
convictions in connection with Morgan's appointment as Director.
For a number of years prior to Morgan's appointment, defendant
worked as a middle school principal in another school district.
It is not clear from the record whether she was employed during
the 2012-2013 school year. However, three weeks after Morgan was
retained, Uszenski recommended that the district's Board of
Education (Board) hire defendant as the district's Academic
Officer. According to the State, this position did not exist in
the district prior to defendant's appointment.
4 A-1637-17T2 The State asserts that Halsey then submitted a fraudulent
application for special services for Uszenski's grandchild,
including the pre-school day care program. In response, Morgan
prepared a fraudulent IEP for the grandchild on July 11, 2013,
which approved his placement in the program, together with
transportation, at public expense. The grandchild entered the
program later in July, and continued receiving these services
through June 2014. The State estimated that these services cost
taxpayers over $50,000.
In December 2013, Morgan left his position with the district.
However, the State alleges that because of his relationship with
defendant, who remained one of the district's highest ranking
officials, Morgan continued to have considerable influence over
the operation of the special services department.
In June 2014, Halsey asked the district to declassify her
child, who was now five years old and ready to enter kindergarten
in September 2014. The State alleges that Halsey made this request
because, as a kindergarten student, the child would now be able
to attend public school full-time with bus transportation and,
therefore, was no longer in need of the free pre-school day care
and transportation services provided to pre-school special needs
students. Because of Halsey's action, the child was no longer
5 A-1637-17T2 classified as a child in need of special education services and,
therefore, he no longer had an IEP in place.
Nevertheless, Halsey was still intent on securing extra
academic and counseling services for Uszenski's grandchild, even
though he was not entitled to them because he was no longer
classified as a special needs student. In furtherance of this
scheme, the State alleges that Morgan contacted Susan Russell, his
replacement as Director, about setting up in-home counseling
services for the grandchild. Morgan falsely told Russell that a
"504 plan," which a child had to have in order to receive such
services, would be in place and that Russell needed to arrange for
the counseling services for the grandchild. He warned Russell,
"You really don't want to piss off . . . Superintendent [Uszenski].
You just got this job."
The State alleges that defendant was Russell's superior and
was responsible for authorizing payment for these types of
services. Morgan told Russell that defendant was aware of the
plan to provide in-home counseling for Uszenski's grandchild, but
that the request for payment would first be sent to Russell.
Morgan told Russell to bring the voucher form directly to
defendant, who would then authorize the payment.
Based upon Morgan's representation, Russell believed the
child had a 504 plan. Therefore, in August 2014, Russell called
6 A-1637-17T2 Rachael Gough, the district's Director of Special Education, 2 and
told her to set up the services. Russell also told Gough that she
should send her bill for the counseling services to Russell, rather
than through the regular channels.
Gough was unable to find an IEP or a 504 plan for the
grandchild because he had been declassified. Nevertheless, Gough
followed Russell's direction and went to Halsey's home to meet
with her concerning the grandchild. Gough then conducted two,
one-hour in-home counseling sessions with the grandchild, but
determined that the child did not need counseling. Gough advised
Russell of her determination, and Russell learned for the first
time that the grandchild did not have a 504 plan in place.
Gough did not follow Russell's instructions concerning the
submission of her request for payment. Rather than sending this
request to Russell, Gough sent it to a secretary in the special
services department. The secretary forwarded it to Russell and
told her that the request for payment could not be processed
because it was not accompanied by a medical note authorizing
"bedside" services for the grandchild. Russell then contacted
Gough and told her to send the request directly to her. Gough did
so.
2 Gough was also a social worker.
7 A-1637-17T2 On October 2, 2014, defendant approved payment for Gough's
services even though the required documentation supporting it was
never provided. Based upon defendant's approval, the district
paid $141 for these unnecessary services for the grandchild.
Although Morgan had told Russell that defendant would approve
the payment for the services, Russell was surprised that she
actually did so. Russell stated that defendant was normally very
careful in her scrutiny of in-home counseling requests and, in
other cases where the required documentation was missing,
defendant had returned the requests to Russell without her
approval. Shortly after defendant approved the payment to Gough,
the scheme involving Uszenski's grandchild came to light.
After considering these facts, the grand jury charged
defendant in count four of the June 20, 2017 indictment with third-
degree official misconduct, in violation of N.J.S.A. 2C:30-2 and
N.J.S.A. 2C:2-6.3 Defendant again applied for PTI. Eligibility
3 The grand jury also charged Uszenski, Morgan, and Halsey with a number of offenses. Specifically, the indictment charged Uszenski with four counts of second-degree official misconduct, N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6 (counts one, five, nine, and ten); two counts of third-degree theft by deception, N.J.S.A. 2C:20-4 (counts three and eight); and one count of second-degree pattern of official misconduct, N.J.S.A. 2C:30-7 (count eleven). The indictment charged Morgan with three counts of second-degree official misconduct (counts one, two, and nine); two counts of third-degree theft by deception (counts three and eight); two counts of fourth-degree false swearing, N.J.S.A. 2C:28-2(a)
8 A-1637-17T2 for PTI is based primarily on "the applicant's amenability to
correction, responsiveness to rehabilitation and the nature of the
offense." N.J.S.A. 2C:43-12(b). "Admission [into the PTI program]
requires a positive recommendation from the PTI director and the
consent of the prosecutor." State v. Negran, 178 N.J. 73, 80
(2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)).
A determination whether to admit a defendant is "'primarily
individualistic in nature[,]' and a prosecutor must consider an
individual defendant's features that bear on his or her amenability
to rehabilitation." Nwobu, 139 N.J. at 255 (quoting State v.
Sutton, 80 N.J. 110, 119 (1979)). In determining eligibility,
prosecutors and PTI program directors must consider the factors
set forth in N.J.S.A. 2C:43-12(e), Rule 3:28, and the accompanying
Guidelines to that Rule (Guidelines), which "elucidate the
'purposes, goals, and considerations relevant to PTI.'" Negran,
178 N.J. at 80 (quoting State v. Brooks, 175 N.J. 215, 223 (2002)).4
(counts six and seven); and one count of pattern of official misconduct (count twelve). Finally, the indictment charged Halsey with one count of second-degree official misconduct (count one); and one count of third-degree theft by deception (count three). 4 Effective July 1, 2018, the Supreme Court adopted new rules governing the PTI application process, Rules 3:28-1 through 3:28- 10. Because these new Rules were obviously not in effect when defendant's application was considered by the PTI director, the prosecutor, and the trial court, we apply the standards in effect at that time.
9 A-1637-17T2 After reviewing defendant's application, and interviewing
her, the PTI director issued a written report, recommending that
defendant not be admitted into the program. The prosecutor agreed
with this recommendation. In the prosecutor's brief submitted to
the trial court, the prosecutor reviewed each and every one of the
seventeen factors set forth in N.J.S.A. 2C:43-12(e), Rule 3:28,
and the accompanying Guidelines.
Addressing the nature of the offense and the facts of the
case, N.J.S.A. 2C:43-12(e)(1) and (2), the prosecutor noted that
N.J.S.A. 2C:43-12(b)(2)(a) specifically provides that "[t]here
shall be a presumption against admission into [the PTI program]
for . . . a defendant who was a public officer or employee whose
offense involved or touched upon his [or her] public office or
employment[.]" A similar presumption against admission is set
forth in PTI Guideline 3(i) of Rule 3:28. That Guideline states
that although any defendant is potentially eligible for PTI, "[i]f
the crime was . . . a breach of the public trust where admission
to a PTI program would deprecate the seriousness of defendant's
crime, the defendant's application should generally be rejected."
Guidelines for Operation of Pretrial Intervention in New Jersey,
Pressler & Verniero, Current N.J. Court Rules, Guideline
3(i)(1)(c), following R. 3:28 at 1291 (2018). While these
presumptions are rebuttable, our Supreme Court has held "that
10 A-1637-17T2 overcoming [them] requires showing 'something extraordinary or
unusual' about the defendant's background." State v. Roseman, 221
N.J. 611, 622-23 (2015) (emphasis added) (quoting Nwobu, 139 N.J.
252-53).
The prosecutor also pointed out that defendant's offense did
not constitute a "victimless" crime under N.J.S.A. 2C:43-12(e)(4)
and (7). In this regard, N.J.S.A. 2C:43-12(a)(3) specifically
provides that PTI "[p]rovides a mechanism for permitting the least
burdensome form of prosecution possible for defendants charged
with "victimless" offenses, other than defendants who were public
officers or employees charged with offenses that involved or
touched their office or employment[.]" (Emphasis added).
In addition, the prosecutor found that the need for
prosecution of this crime of official misconduct outweighed the
value of possible supervisory treatment based upon defendant's
intentional action in approving the unsupported request for
payment. N.J.S.A. 2C:43-12(e)(14) and (17). Although defendant
was not charged as a co-conspirator with Uszenski, Morgan, and
Halsey in the events involving Uszenski's grandchild prior to
September 2014, the prosecutor stated that defendant was so
intertwined in the overall scheme that her participation in PTI
would affect the prosecution of the codefendants. N.J.S.A. 2C:43-
12(e)(15) and (16).
11 A-1637-17T2 At the same time, the prosecutor considered all of the
applicable mitigating factors, including defendant's age,
educational background, employment history, and lack of a prior
criminal record. He also noted the letters of support defendant
received from friends and colleagues. N.J.S.A. 2C:43-12(e)(3),
(9), (12), and (13). However, the prosecutor concluded that these
nonidiosyncratic factors did not outweigh the serious nature of
the offense and the facts of this case.
Defendant filed a motion to compel her entry into PTI over
the prosecutor's objection. Following oral argument, the trial
judge rendered a written decision, reversed the prosecutor's
determination, and admitted defendant into PTI.5 Although the
judge found that the prosecutor had considered all of the relevant
factors, he determined that the prosecutor had incorrectly weighed
them in denying defendant's application.
In so ruling, the judge stated that defendant was only charged
in one count of the indictment and, therefore, played a lesser
role than her codefendants. The judge also found significant that
defendant had only caused $141 in public funds to be misused even
though, by definition, any amount less than $200 constitutes a
5 Pursuant to Rule 3:28(f), the order enrolling defendant into the PTI program was automatically stayed when the State filed its notice of appeal.
12 A-1637-17T2 third-degree offense under N.J.S.A. 2C:30-2. The judge noted that
defendant disputed that she had any responsibility to review
payment requests or supporting documentation concerning them and,
instead, simply approved payment for services that had already
been performed.
The judge further stated that the prosecutor should have
considered that if both defendant and Morgan were sentenced to
prison, their child would be left without support. However, the
judge did not acknowledge that their child was now an adult.
While noting there was a presumption against PTI admission
for an individual, like defendant, who is charged with official
misconduct, the judge found that this presumption was overcome by
such factors as defendant's age, educational background, and lack
of prior criminal record. The judge also credited defendant's
claim that she now suffered from depression and anxiety as the
result of her indictment, but failed to mention that these
conditions had no causal connection to her alleged commission of
the underlying offense.
In a conclusory final paragraph, the judge found that the
State's prosecution of the three codefendants would not be
adversely affected if defendant was admitted to PTI. The judge
based this finding on his observation that defendant was not
charged with conspiring with the codefendants to commit the
13 A-1637-17T2 offenses that preceded her involvement in the scheme in September
2014. This appeal followed.
On appeal, the State argues the judge substituted his judgment
for that of the prosecutor, and that the prosecutor's decision to
reject defendant's PTI application was based upon a thorough review
of all appropriate factors and did not constitute a gross and
patent abuse of discretion. We agree.
Established precedents guide our task on appeal. The decision
whether to accept or reject a defendant's PTI application is
essentially a prosecutorial function. State v. Leonardis, 73 N.J.
360, 381 (1977). Therefore, a "[d]efendant generally has a heavy
burden when seeking to overcome a prosecutorial denial of his [or
her] admission into PTI." State v. Watkins, 193 N.J. 507, 520
(2008). "In respect of the close relationship of the PTI program
to the prosecutor's charging authority, courts allow prosecutors
wide latitude in deciding whom to divert into the PTI program and
whom to prosecute through a traditional trial." Negran, 178 N.J.
at 82.
Indeed, "[b]ecause of the recognized role of the prosecutor,
we have granted enhanced deference to prosecutorial decisions to
admit or deny a defendant to PTI." State v. DeMarco, 107 N.J.
562, 566 (1987) (citing State v. Dalglish, 86 N.J. 503, 513-14 n.1
(1981)). Accordingly, there is an "expectation" by the Supreme
14 A-1637-17T2 Court that a prosecutor's decision to reject a PTI applicant "will
rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996)
(quoting Leonardis, 73 N.J. at 380).
"Issues concerning the propriety of the prosecutor's
consideration of a particular [PTI] factor are akin to 'questions
of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (1979).
"Consequently, on such matters an appellate court is free to
substitute its independent judgment for that of the trial court
or the prosecutor should it deem either to have been in error."
Id. at 105. While we exercise de novo review over the propriety
of considering a certain PTI factor, we afford prosecutors "broad
discretion to determine if a defendant should be diverted." State
v. K.S., 220 N.J. 190, 199 (2015). This discretion arises out of
the prosecutor's charging authority. Id. at 200.
It has been long-established that the scope of judicial review
of a prosecutor's decision to reject a defendant's application
into PTI is "severely limited" and "serves to check only the 'most
egregious examples of injustice and unfairness.'" Negran, 178
N.J. at 82 (quoting Leonardis, 73 N.J. at 384). "Prosecutorial
discretion in this context is critical for two reasons. First,
because it is the fundamental responsibility of the prosecutor to
decide whom to prosecute, and second, because it is a primary
purpose of PTI to augment, not diminish, a prosecutor's options."
15 A-1637-17T2 Nwobu, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super.
106, 111-12 (App. Div. 1993)).
"A trial court does not evaluate a PTI application 'as if it
[stands] in the shoes of the prosecutor.'" State v. Hoffman, 399
N.J. Super. 207, 216 (App. Div. 2008) (quoting Wallace, 146 N.J.
at 589). Moreover, a trial court "cannot substitute its own
judgment for that of the prosecutor even when 'the prosecutor's
decision is one which the trial court disagrees with or finds to
be harsh." Ibid. (quoting Kraft, 265 N.J. Super. at 112-13).
Therefore, the question presented to a trial court reviewing a
defendant's appeal from a prosecutor's denial of a PTI application
"is not whether [the court] agree[s] or disagree[s] with the
prosecutor's decision, but whether the prosecutor's decision could
not have been reasonably made upon weighing the relevant factors."
Nwobu, 139 N.J. at 254.
In order for a defendant to succeed in overturning the
prosecutor's denial of his or her admission into PTI, the defendant
must "clearly and convincingly establish that the prosecutor's
decision constitutes a patent and gross abuse of discretion."
Watkins, 193 N.J. at 520. An abuse of prosecutorial discretion
is established when a defendant demonstrates "that a prosecutorial
veto (a) was not premised upon a consideration of all relevant
factors, (b) was based upon a consideration of irrelevant or
16 A-1637-17T2 inappropriate factors, or (c) amounted to a clear error in
judgment[.]" Roseman, 221 N.J. at 625 (quoting State v. Bender,
80 N.J. 84, 93 (1979)). "In order for such an abuse of discretion
to rise to the level of 'patent and gross,' it must further be
shown that the prosecutorial error complained of will clearly
subvert the goals underlying" PTI. Ibid.
Guided by these principles, we conclude that the trial judge
mistakenly ordered defendant's admission into PTI over the
prosecutor's objection. We are convinced from our review of the
record that the prosecutor considered, weighed, and properly
balanced all of the requisite factors, including those personal
to defendant as well as the facts and circumstances of the offense.
As noted above, the trial judge acknowledged that the
prosecutor addressed all the factors listed in N.J.S.A. 2C:43-
12(e). However, the State did much more than that. In its
submission in opposition to defendant's application, the
prosecutor identified the facts it considered, together with how
it weighed those facts in its analysis. There is no evidence in
the record that the prosecutor considered any improper or
irrelevant factors.
The trial judge mistakenly found that the State gave short
shrift to the personal facts of defendant's case, such as this
being her first indictable offense, her employment history, and
17 A-1637-17T2 her child care responsibilities. Again, the State not only
considered these factors, it explained how it weighed them.
On the other hand, the judge gave undue emphasis to a number
of the personal factors, especially defendant's lack of a criminal
record. With regard to defendant's clean prior record, we observe
that our Supreme Court has held that a defendant's "status as a
first-time offender" is not the type of "extraordinary or unusual"
circumstance needed to overcome a statutory presumption against
admission into PTI. Roseman, 221 N.J. at 623 (citing Nwobu, 139
N.J. at 241, 252-53).
The judge's overemphasis of defendant's personal factors
underscores the major error in the decision under review. The
decision was predicated on the judge's own assessment of the PTI
factors, rather than on a determination of whether the prosecutor
failed to consider all relevant factors, considered inappropriate
factors, or clearly erred in his judgment. By highlighting only
the mitigating factors, the judge ignored the nature of the
offense, the facts of the case, and the impact placing defendant
in PTI would have on the prosecution of her codefendants.
As noted in our discussion of the judge's decision, the judge
mistakenly determined that third-degree official misconduct was a
"minor offense." However, the Legislature has expressly
determined that there should be a presumption against admission
18 A-1637-17T2 into PTI for anyone charged with this offense. N.J.S.A. 2C:43-
12(b)(2)(a). Our Supreme Court has established a similar
presumption in PTI Guideline 3(i)(1)(c) of Rule 3:28.
The trial judge briefly mentioned this presumption but, once
again, highlighted facts which did not support a conclusion that
defendant was able to overcome the presumption. The judge
downplayed defendant's involvement in the overall official
misconduct scheme, finding that she only diverted $141 of public
money to provide unneeded services to Uszenski's grandchild. The
judge also noted that Uszenski, Morgan, and Halsey played a larger
part in the enterprise than she did.
However, the Legislature has determined that even if a public
employee steals or diverts only one dollar of taxpayer money, the
employee has committed a third-degree offense, punishable by up
to five years in prison, with a mandatory minimum sentence of two
years. N.J.S.A. 2C:30-2(b); N.J.S.A. 2C:43-6.5(a). Thus, the
fact that defendant was "only" charged with diverting $141 to help
the daughter of the man who gave her and Morgan high-ranking
positions with the district is of little moment. Moreover, the
Supreme Court has held that a defendant's assertion that he or she
"played a relatively minor role in the" overall crime is simply
not the type of "extraordinary or unusual" fact needed to overcome
19 A-1637-17T2 a statutory presumption against admission into PTI. Roseman, 221
N.J. at 623 (citing Nwobu, 139 N.J. at 252-53).
The trial judge cited, but did not fully analyze, the Court's
decision in Roseman, and stated it supported defendant's admission
into PTI. We disagree.
In Roseman, the defendant was the mayor of a town and, as a
result of this official position, both he and his wife received
health benefits provided by the town. 221 N.J. at 616. The
defendant and his wife then divorced, and the defendant told the
town clerk that he and his wife were no longer married. Ibid.
Nevertheless, the town failed to remove the former spouse from the
town's health plan. Ibid. When the defendant later discovered
this error, he promptly reported it and had his former spouse
taken off the plan. Id. at 617. His former spouse repaid the
benefits she had received under the plan. Ibid.
A subsequent audit revealed that other individuals who were
no longer entitled to health benefits were mistakenly still listed
as insureds under the plan. Ibid. The State charged the defendant
with a number of offenses, including second-degree official
misconduct, N.J.S.A. 2C:30-2. Ibid. The other individuals who
also mistakenly received benefits were not charged. Ibid.
Our Supreme Court determined that the circumstances of the
defendant in the Roseman case were "compelling and idiosyncratic"
20 A-1637-17T2 and, under these unusual circumstances, supported the defendant's
admission into PTI. Id. at 626. The Court found it significant
that "[t]he criminal violations were essentially self-reported,
and occurred through an administrative error after [the defendant]
correctly advised the clerk of his marital status change and noted
the change on his W-4 form." Ibid. The Court also found it
compelling that the defendant "took immediate action to ameliorate
the problem by removing [his former spouse] from [the town's plan]
and initiating an internal audit of all [of the town's] health
insurance policy holders." Ibid.
Unlike the defendant in Roseman, defendant did not
demonstrate any "compelling or idiosyncratic" circumstances
enabling her to overcome the strong presumption against admission
into PTI. Ibid. Defendant did not turn herself in, blow the
whistle on Uszenski, Morgan, and Halsey, or take any immediate
action to correct what had occurred. Instead, she accepted the
emoluments of the high-ranking position Uszenski arranged for her,
and then approved the payment for counseling services to which
Uszenski's grandchild was obviously not entitled. Under these
circumstances, the trial judge erred in concluding there were
"extraordinary and unusual" facts that overcame the presumption
against PTI under Roseman.
21 A-1637-17T2 Finally, the trial judge mistakenly found that admitting
defendant into PTI would not adversely affect the State's
prosecution of her codefendants. As noted above, the judge based
this ruling on his observation that defendant was not charged with
conspiracy in the indictment. However, that is too facile of an
analysis to withstand scrutiny.
Where, as here, "[t]wo or more defendants . . . are alleged
to have participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or
offenses[,]" a joint indictment and a joint trial of codefendants
is appropriate. R. 3:7-7. Indeed, a joint trial is preferable
where "much of the same evidence is needed to prosecute each
defendant[.]" State v. Sanchez, 143 N.J. 273, 281 (1996) (quoting
State v. Brown, 118 N.J. 595, 605 (1990)).
As the prosecutor pointed out in its opposition to defendant's
application, the State planned to prove at trial that although
defendant was only charged in one count of the indictment, her
role was interconnected with that played by her three codefendants
such that the overall scheme would not have succeeded or lasted
for as long as it did without her active participation. Whether
or not the State will be successful with its theory of the case
is a matter that must be determined either on a motion to dismiss
or by a jury trial. However, because "much of the same evidence
22 A-1637-17T2 is needed to prosecute" all four defendants, the fact that the
State decided to charge defendant with her codefendants in a single
indictment did not compel her admission into PTI. Sanchez, 143
N.J. at 281.
In sum, the prosecutor evaluated the relevant factors and
exercised permissible discretion in rendering his determination.
Under these circumstances, we discern no patent and gross abuse
of discretion by the prosecutor in denying defendant's admission
into PTI. While it is possible that reasonable minds could differ
in analyzing and balancing the applicable factors in this case,
judicial disagreement with a prosecutor's reasons for rejection,
as occurred here, does not equate to prosecutorial abuse of
discretion so as to merit a judicial override of the prosecutor's
decision. DeMarco, 107 N.J. at 566-67.
Reversed.
23 A-1637-17T2